Snook & Austin Furniture Co. v. Steiner & Emery

Lamar, J. Ordinarily it is the lessor who insists that the term continues notwithstanding the destruction of the building. Here the usual positions are reversed. The lessors entered after the fire, began removing the debris, claimed that the contract was at an end, that the furniture company was not indebted for future rent, — 369 — -and that the lessors were entitled to the possession of the premises and to build thereon a structure entirely different from that destroyed. The tenant sought to enjoin the building of a different ■character of structure. The defendants are solvent, and the case might possibly have been disposed of on the point as to whether the damages were irreparable, and whether a court of equity could ■enjoin a solvent defendant when the trespass was complete. But, using the word “ lease ” in a popular rather than in a strictly technical sense, we shall follow the line of argument of counsel for both parties, who fully discussed the questions that must finally control. 1. Where city property is described by street number and there is a lot or garden attached, or where a farm with buildings thereon, or a city building described by metes and bounds, is leased, or it is evident from the language used in the contract of rental that the tenant takes an interest or an estate for years in land, the destruction of the building does not destroy the lessee’s interest in the land. After the structure is destroyed the tenant is still entitled to the possession of the land for the balance of the term. The common law and our Civil Code, § 3135, unlike the civil law, make no apportionment of the rent in consequence of a destruction of part of the leased property. But where the leased premises constitute one or more apartments, or where the language shows that the subject-matter of a lease is a building on land, without any conveyance of an interest in land itself, the destruction of the building terminates the tenant’s interest in the land supporting the building. 2. The issue between the parties is clear-cut. It is admitted by the plaintiff, if only the buildings were leased and no interest or estate in land was created, that the destruction of the premises would terminate the plaintiff’s right to possession; but it is insisted that the instrument of conveyance was called an “ indenture; ” that the property leased is referred to as premises;” that the premises were leased “ with and subject to servitudes and easements; ” that these phrases and the technical words,/‘grant,” “appurtenances,” “demise,’’’and “to farm let,” all clearly show that land, or an estate in land; and not a house on land, was conveyed. No particular form is essential to the validity of a deed, and technical words are not necessary to create an estate in land. Civil Code, § 3602. On the other hand such an estate will not be — 370 — created by the' mere use of technical berms, if from the instrument construed as a whole it is apparent that the parties did not so intend. ' Technical words are great aids in determining the meaning of instruments, but the use of such terms will not prevail over the real intention of the grantor when clearly ascertained from the four-corners of the paper. Civil Code, §§ 3673, 3675 (2). The property was described as “ all those certain premises in Atlanta,, known as Nos. 2 — 10 Peachtree street, including the second and. third stories over the same, and including the kitchen in the rear of said premises, and including the second floor over the building recently erected for the Nashville Packing Company, excepting therefrom the offices at the rear thereof [probably kitchen] on Wall street, and being in land lot seventy-seven, said county, with and subject to the rights, members, servitudes, and easements thereunto appertaining. ” It is important, if possible, to define the word “ premises." It has varied meanings; it is a word frequently used in conveyances, and, unless there is something to qualify the meaning, generally refers to real estate. In a contract to sell the “ premises Nos. 2 — 10 Peachtree street,” it would include the land on which the buildings were located. McMillan v. Solomon, 42 Ala. 356; cf. White v. Molyneux, 2 Ga. 124. On the other hand, if an insurance company were to insure such premises, it would only mean the buildings thereon. The word rarely includes personal property, and yet in a policy on a ship it was held to refer to the vessel. 1 May on Insurance, § 243. In the lease contract here the word “ premises ” simply referred to whatever was leased, without defining the property or estate. It shed no light on the question as to whether an interest in land was created. Compare Zinc Co. v. Franklinite Co., 13 N. J. Eq. 331. We get little assistance from the word “ premises ” with its variable meaning, and must examine the other descriptive terms to determine what was leased. There is no mention of land, nor is the property described by metes and bounds. The indenture refers to the “premises, . . including the second and third stories over the same,” which was an unusual fqrm of description if land was intended to be conveyed. It may not be necessary, but it is quite common to convey “ land with the buildings thereon, ” but almost unheard of to describe the parts of a building, or the separate stories thereof, when land is intended bo be conveyed. Where no reference is made to land, where the — 371 — words “house,” “dwelling,” or “hotel” were not used, but only the parts of the building were specified, where the second and third stories were expressly mentioned, it goes far to indicate that the parties were contracting with reference to a building, and not creating an estate in land. This must he true as to the packing-house; for as to it the first story was excluded, and only the second story rented. So, too, as to the kitchen. It appears from the description in the Haverty lease that the offices on Wall street were in the rear of the kitchen. Consequently no land under the packing-house or kitchen was conveyed, but only a right of support; and this is not an estate. Womack v. McQuarry, 28 Ind. 103. It is true that the word “premises” is used in other parts of the instrument where it could refer either to the land or to the buildings, or to both; as, for example, “permanent improvements placed on the premises shall become the property of the lessor.” But as here used it might refer to improvements in the building. The provision that the tenant was to “ keep the premises in repair, ” and the phrase,' “should the leased premises be destroyed by fire,” did not relate to land, but to the structure. We have carefully considered the argument based on the fact that reference was made in the lease contract to “ the old wall now standing on said premises.” This language does indicate that “premises” referred to land, but we do not think it sufficient to counterbalance the argument based on the very unusual, peculiar, and controlling language of the descriptive paragraph of the lease, where parts of the main building and other buildings are specifically described as the property that was leased. Nor does the allusion to “ land lot seventy-seven (77) of the fourteenth (14) district of said oounty” affect this construction any more than the use of the phrase, “ in the city of Atlanta.” It was but an effort to specifically describe where the premises were located. So, too, as to the argument based on the fact that in other instruments between Steiner & Emery and their lessors the property was referred to as a leasehold or an interest in land; for even if definitions in contracts between them and other parties would shed light which could be used in determining the meaning of phrases in a contract with the plaintiff, we think that there was the material difference that in those instruments land was expressly named and the tract described by metes and bounds. The conclusion that the lease here was of — 372 — buildings and not of an interest in land is somewhat supported by what this court said in Fleming v. King, 100 Ga. 454, where the building was totally destroyed by fire, that “ the evidence strongly indicates that the tenants only rented the storehouse from the landlord, and, in that case, when it was burned their whole interest in the property was gone, and the landlord had the right to re-enter, not only for the purpose of enclosing the cellar, pulling down the walls, and cleaning the brick, but for the purpose of rebuilding, without being guilty of an eviction.” In Alexander v. Dorsey, 12 Ga. 12, and Pope v. Garrard, 39 Ga. 471, the destruction of apartments was held to entitle the landlord to re-enter, even though it was decided that under the Civil Code, § 3531, he could still recover the rent. See also Ainsworth v. Ritt, 38 Cal. 89. As to the general rule, in other jurisdictions, that the destruction of a building containing the leased apartments abates the rent, see McMillan v. Solomon, 42 Ala. 356, and cit., s. c. 94 Am. Dec. 654. 3, 4. The original lease from Mrs. Flynn undoubtedly described and conveyed land eo nomine. Its provisions as to returning the property free from incumbrances by lien, or for water, gas, or other charges, were copied into the lease of the premises Nos. 2-10 Peachtree street. Putting in such provisions as a result of mere mechanical copying (Civil Code, § 3672, par. 6), or out of abundant caution, or because it was supposed to be necessary, would not enlarge a lease of the building into a lease of land.' So, too, the fact that the property was leased “ with and subject to easements and servitudes ” is not of controlling force in the construction to be given. For an easement of ingress and egress over an alley may pass as an appurtenance in a lease of a building or of an apartment in a building. Doyle v. Lord, 64 N. Y. 432; Seidel v. Blouser, 77 Mo. App. 172; Patterson v. Grant, 140 Ill. 531. Though no estate in land was created, the lease of the building alone undoubtedly implied that the lessee had such an interest in the land as was necessary to support the leased premises. For in a lease of an apartment or of a house the grant necessarily carries with it, as an incident, whatever is necessary to the enjoyment of the leased premises; but as soon as the incident is no longer required to make possible the enjoyment of the thing conveyed, the interest of the tenant in the incident terminates. Such right in the land is defeasible. A lease of a building may include lease of — 373 — a particular right in the land, but not of the land itself, and when the building is destroyed the particular right of the lessee is vested in the lessor. Austin v. Field, 7 Abb. Pr. (N. S.) 29; Graves v. Berdan, 29 Barb. 104. “In such cases no interest in the land passes; or rather, after the destruction of the building and apartments demised, no interest in the land remains in the tenant.”Compare Stockwell v. Hunter, 11 Met. 457; Buerger v. Boyd, 25 Ark. 441. Where such is the intent of the parties, the term may continue after the building has been destroyed, even though no rent is to be paid until its restoration, as where there is a partial destruction of the premises, or the tenant is himself bound to repair or to rebuild but is relieved from paying rent until the work has been finished. Smith v. McLean, 22 Ill. App. 451, s. c. 123 Ill. 210. 5-7. The parties may provide for a suspension of the relation of landlord and tenant between the time of the destruction of the building and its reconstruction. In such a case the landlord is bound promptly to rebuild, and as soon as the new structure is complete the tenant’s liability to pay rent is renewed. But if the landlord, instead of binding himself to rebuild, merely reserves the option so to do, and provides that rent abates until the structure is rebuilt, and when thereupon the landlord notifies the tenant that he will not rebuild, or that he will build an entirely different character of structure, the termination of the tenant’s incidental right of support in the land is permanent. A lease contract, like all others, must be construed according to the intention of the parties, and with reference to the subject-matter. Alexander v. Dorsey, 12 Ga. 14. And if it appears that the parties intended that possession was to be surrendered when the liability for rent ceased, the courts will give effect to such intention, even though an interest in land and an estate for years had been- expressly created. In endeavoring to determine what was the intention of these parties let us put ourselves as nearly as possible in the position they occupied on December 31, 1898. The property was very valuable ; it was renting for something like $10,000 per year ; the landlords themselves were tenants with a term which expired in 1907, paying rent to Mrs. Flynn at the rate of $625 per month, and being also bound for taxes thereon ; the former contract with Bhodes, Snook & Haverty had required Steiner & Emery to rebuild; when the new lease was presented they expressly refused to enter into an abso — 374 — lute contract to rebuild, but reserved the option so to do, agreeing that the rent should cease until the building- was reconstructed. A fire might have occurred shortly after the lease; the policies might have lapsed; the companies might have refused to pay; litigation to collect the insurance money might have resulted; or it 'might have been considered that the then form of structure was undesirable. They therefore reserved the right not to rebuild. Can it be supposed that, with property so valuable, they would have stipulated that during the rest of the term the furniture company should be allowed to remain in possession without payment of rent ? Is it not evident that both parties-, understood, if Steiner & Emery decided not to rebuild and thereby lost the right to collect rent, that the relation of landlord and tenant should cease ? It would have been most unusual to permit the vacant lot to be occupied free of charge, although at the same time Steiner & Emery were under obligations to pay rent to Mrs. Flynn, besides paying taxes on the property. An estate for years may be made to terminate upon a contingency or a condition subsequent. Civil Code, §§3112, 3136, 3137. In effect the parties provided that the duty to pay rent and the right to occupy the land should be correlative. The furniture company had only leased the stores, the second and third stories, the ’ kitchen, and the second story of the packing-house. When those designated subject-matters of lease were destroyed, and the landlords gave notice that they would not rebuild, the term ceased, whether it had been an interest in land, or in buildings on land, or of a second story over the packing-house, or of all combined. In Buschman v. Wilson, 29 Md. 553, certain real estate with planing-mill and other buildings were leased for six years, it being stipulated that if the whole property was burned -down the rent would cease;" the buildings were destroyed; the tenants remained in possession and refused to allow the landlord to re-enter. An interest in land seems to have been conveyed; but the court held, that, having regard for the manifest intention of the parties, and the fact that the tenant and his cotenant were availing themselves of the exempting provision, they were not entitled to retain possession. “ The clause with reference to the cessation of rent implies an obligation on the part of the tenants to surrender the premises upon the occurrence of the event that released them from the further payment of rent. Any other construction would work gross injustice, — 375 — and contravene the plain purpose and design of the parties.” Citing Gates v. Green, 4 Paige, 355. See also Ainsworth v. Ritt, 38. Cal. 89 ; Miller v. Miller, 15 Pick. 57, 61, 63. Complete surrender of the premises is a condition precedent to the tenant’s release from liability for rent under statutes containing provisions substantially similar to the contract here. Roach v. Peterson, 47 Minn. 291; Gay v. Gavey, 47 Ohio St. 396 ; Smith v. Karr, 108 N Y. 31. In Tatum v. Thompson, 86 Cal. 206, the premises were not destroyed but damaged, and the tenant’s right to retain possession without payment of rent was based on the landlord’s breach of duty. Whether the contract created only a usufruct or an interest in land, in view of the provision that the rent was to cease until the building was reconstructed, the notification by Steiner & Emery that they would rebuild an entirely different form of structure, .and the evident intention of the parties that the obligation to pay and the right to possession should be correlative, the chancellor was right in refusing the injunction; and the judgment is Affirmed. By five Justices.